Summary
exercising inherent authority to summarily dismiss a frivolous case where pro se plaintiff filed new case seeking to vacate a previously-adjudicated case
Summary of this case from Salters v. Greenwood Cnty. Circuit CourtOpinion
No. 2:14-cv-24-RMG
02-04-2014
Ronald Banks Mayhew, Plaintiff, v. Judge Patrick Michael Duffy, Defendant.
ORDER
This matter comes before the Court on the Report and Recommendation ("R&R") of the Magistrate Judge recommending that this case be dismissed without prejudice. (Dkt. No. 9). For the reasons set forth below, the Court agrees with and adopts the R&R as the order of the Court.
Background
Plaintiff filed this action pro se seeking damages and vacation of Judge Duffy's dismissal of a prior action, Mayhew v. ILA Local 1771, No, 2:11-cv-3226-PMD, because Judge Duffy lacked the appearance of impartiality because his nephew worked for a defendant in that case. (Dkt. No. 1). Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) DSC, this case was assigned to a Magistrate Judge for all pretrial proceedings. The Magistrate Judge then conducted an initial review of the pleading to ensure it was not frivolous. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000). The Magistrate Judge then issued the present R&R recommending the case be dismissed as frivolous. (Dkt. No. 9). Plaintiff then filed a response to the R&R, (Dkt. No. 12).
Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making a de novo determination of those portions of the R&R to which specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 IJ.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
Discussion
In his response, Plaintiff does not object to the R&R but rather accepts the recommendation of dismissal of this action. (Dkt. No. 12). After review of the record, the R&R, and Plaintiffs response, the Court finds no clear error and therefore wholly adopts the R&R as the order of the Court. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
Conclusion
As set forth above, the Court agrees with and wholly adopts the R&R as the order of the Court. (Dkt. No. 9).
AND IT IS SO ORDERED.
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Richard Mark Gergel
United States DistricTXourt Judge
February 4, 2014
Charleston, South Carolina